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View from the foot of the Tower: Playing catch-up

As Ferris Bueller almost said - guidance from the senior courts moves pretty fast, if you don't stop and look around once in a while, you could miss it.

So, by way of a catch-up, here are the things that the High Court and Court of Appeal have told lawyers that they must do or understand, just this year. It is only April, and here is what we have already been hit with.

(1) Not play any part in drawing up facts and reasons in agreed / uncontested cases being dealt with by Justices.

To address fully, by Case Management Hearing (day 12) any disabilities that the parent may have and to resource any intermediaries (including obtaining prior authority from the Legal Aid Agency) who would be needed to assist them in Court, and make an application for any specialist assessment

(a) There is duty on those acting for the parent(s) to identify their client's need for assistance in responding to questions and giving instructions, which must be considered by representatives at the outset of their instruction. Any need for support must be addressed at the earliest opportunity.

(b) When this is known prior to the outset of proceedings, on issuing, local authorities should draw the issue of competence and capacity to the court's attention. In turn, on the day following issue, the court will give directions for the appointment of a litigation friend. The new PLO envisages that in those circumstances the court should give directions for special measures at the case management hearing to take place by day 12 of the proceedings.

(c) When the issue of capacity and competence is not identified at the outset, it should be addressed fully at the case management hearing. At that hearing, those representing the parents should apply for special measures, where the case for such measures can be made out without any expert advice. Alternatively, where expert advice is necessary to identify the existence or extent of the learning difficulties, they should make an application in accordance with Part 25 of the FPR for an expert to carry out an immediate assessment of the capacity and competence of the party.

(d) The legal representatives should normally by the date of the case management hearing identify an agency to assist their client to give evidence through an intermediary or otherwise if the court concludes that such measures are required. If the court is satisfied that an expert report is necessary to determine whether the party lacks capacity or competence and/or as to the extent of any special measures required, it may direct a further case management hearing to take place once the expert has reported so that detailed directions can then be given for the instruction of an intermediary and/or such other assistance as may be necessary.

(e) So far as funding is concerned, there is a distinction between the cost of obtaining a report from an expert as to capacity and competence, and the cost of providing services from an intermediary. The former will, subject to the approval of the legal aid agency, whereas the latter, as a type of interpretation service, will be borne by the Court Service. Those representing the relevant party should address these funding issues at the earliest opportunity. They should obtain prior approval from the legal aid agency for the instruction of the expert and, as soon as possible, give notice to Her Majesty's Courts and Tribunal Service that the services of an intermediary are likely to be required.

If the case involves a deaf person, the intermediary ought to include a Deaf Relay Interpreter as well as the sign language interpreter.

(3) To understand and be able to advise on all of the provisions in the Human Fertilisation and Embryology Act 2008 and the regulations governing that Act (the High Court say that every family lawyer should be in a position to advise on it, not sufficient to say that you aren't a specialist).

Even where it is asserted that delay will not be occasioned, the use of split hearings must be confined to those cases where there is a stark or discrete issue to be determined and an early conclusion on that issue will enable the substantive determination (ie whether a statutory order is necessary) to be made more expeditiously. The reasons for this are obvious: to remove consideration by the court of the background and contextual circumstances including factors that are relevant to the credibility of witnesses, the reliability of evidence and the section 1(3) of the Children Act 1989 welfare factors such as capability and risk, deprives the court of the very material (ie secondary facts) upon which findings as to primary fact and social welfare context are often based and tends to undermine the safety of the findings thereby made. It may also adversely impinge on the subsequent welfare and proportionality evaluations by the court as circumstances change and memories fade of the detail and nuances of the evidence that was given weeks or months before.

(5) To understand the circumstances in which an 8-week extension might be given or refused, following the President's 'preliminary and tentative observations'.

'[33] There will, as it seems to me, be three different forensic contexts in which an extension of the 26 week time limit in accordance with section 32(5) may be "necessary":

(i) The first is where the case can be identified from the outset, or at least very early on, as one which it may not be possible to resolve justly within 26 weeks. Experience will no doubt identify the kind of cases that may fall within this category. Four examples which readily spring to mind (no doubt others will emerge) are: (a) very heavy cases involving the most complex medical evidence where a separate fact finding hearing is directed in accordance with Re S (Split Hearing) [2014] EWCA Civ 25, [2014] 2 FLR (forthcoming), para [29]; (b) FDAC type cases (see further below); (c) cases with an international element where investigations or assessments have to be carried out abroad; and (d) cases where the parent's disabilities require recourse to special assessments or measures (as to which see Re C (Care Proceedings: Parents with Disabilities) [2014] EWCA Civ 128, para [34]).

(ii) The second is where, despite appropriately robust and vigorous judicial case management, something unexpectedly emerges to change the nature of the proceedings too late in the day to enable the case to be concluded justly within 26 weeks. Examples which come to mind are (a) cases proceeding on allegations of neglect or emotional harm where allegations of sexual abuse subsequently surface, (b) cases which are unexpectedly ‘derailed' because of the death, serious illness or imprisonment of the proposed carer, and (c) cases where a realistic alternative family carer emerges late in the day.

(iii) The third is where litigation failure on the part of one or more of the parties makes it impossible to complete the case justly within 26 weeks (the type of situation addressed in Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146, [2014] 2 FLR (forthcoming), reported at December [2013] Fam Law 1515, para [49]).

[34] I repeat, because the point is so important, that in no case can an extension beyond 26 weeks be authorised unless it is 'necessary' to enable the court to resolve the proceedings "justly". Only the imperative demands of justice - fair process - or of the child's welfare will suffice.'

(6) Where one parent lives abroad, the very firm strictures of the High Court on the expectations on ALL parties about locating that person and complying with orders.

'[12] In cases such as this, where one or both of the parents lives abroad, the following action should be taken:

(1) At an early stage every effort should be made to locate, contact and engage a parent who lives abroad. If that other country is one of the signatories to B2R information as to the parent's whereabouts can be obtained through an Article 55 request via the Central Authority. My experience is they respond effectively and efficiently to focused requests made.

(2) Once contacted the parties and, if necessary, the court should take active steps to secure legal representation for such parents. In this case nothing effective was done for five months. It took less than five hours at the hearing in September to contact the father and secure representation. Most solicitors who do this sort of work have a wealth of experience in undertaking work where one of the parties resides abroad. It is now a much more regular feature of this type of case.

(3) The court must effectively timetable any issues as to jurisdiction to avoid the delays that occurred in this case. This includes early consideration regarding transfer to the High Court. A party seeking written expert legal advice about the extent of this court's jurisdiction as to habitual residence is not likely to be a helpful step. The question of jurisdiction is a matter to be determined by the court following submissions from the party's legal representatives.

(4) There needs to be a more hands-on approach by all parties with regard to compliance with court orders. No party should be able to sit back as a spectator and watch non-compliance with orders and not shoulder any responsibility that flow as a result of those failures. The air of indifference by all parties in this case at the hearing in September to the fact that the father had not been served for five months was shocking.

(7) Where one or both parents is an EU national, an understanding of Brussels II and the Vienna Convention.

[35] It is highly desirable, and from now on good practice will require, that in any care or other public law case with a European dimension the court should set out quite explicitly, both in its judgment and in its order:

(i) the basis upon which, in accordance with the relevant provisions of BIIR, it is, as the case may be, either accepting or rejecting jurisdiction;

(ii) the basis upon which, in accordance with Article 15, it either has or, as the case may be, has not decided to exercise its powers under Article 15.

[36] This will both demonstrate that the court has actually addressed issues which, one fears, in the past may sometimes have gone unnoticed, and also identify, so there is no room for argument, the precise basis upon which the court has proceeded. Both points, as it seems to me, are vital. Judges must be astute to raise these points even if they have been overlooked by the parties. And where Article 17 applies it is the responsibility of the judge to ensure that the appropriate declaration is made.

[37] As I have observed, the process envisaged by Article 55 works both ways. The English courts must be assiduous in providing, speedily and without reservation, information sought by the Central Authority of another Member State. At the same time judges will wish to make appropriate use of this channel of communication to obtain information from the other Member State wherever this may assist them in deciding a care case with a European dimension.

"Articles 36 and 37 of the Vienna Convention on Consular Relations are probably not very familiar to most family lawyers."

[41] I am concerned only with what they suggest as good practice in care cases. But in that context there are, as it seems to me, three points to be borne in mind:

(i) First, Article 36 enshrines the principle that consular officers of foreign states shall be free to communicate with and have access to their nationals, just as nationals of foreign states shall be free to communicate with and have access to their consular officers.

(ii) Second, the various obligations and rights referred to in paragraphs (b) and (c) of Article 36(1) apply whenever a foreign national is "detained"; and where a foreign national is detained the "competent authorities" in this country have the obligations referred to in paragraph (b).

(iii) Third, Article 37(b) applies whenever a "guardian" is to be appointed for a minor or other foreign national who lacks full capacity. And Article 37(b) imposes a particular "duty" on the "competent authorities" in such a case.'

8. Where there are linked criminal proceedings or the possibility of such, an understanding of how to advise your client about s 98(2) and whether it genuinely protects them.

'[42] I consider it necessary and appropriate to give the following guidance to family and criminal practitioners on the issue that has arisen in this matter:

(a) when a party to care proceedings is ordered to file and serve a response to threshold and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order;

(b) the importance of parents or intervenors giving a frank, honest and full account of relevant events and matters cannot be overstated. It is a vital and central component of the family justice system;

(c) a legal practitioner is entitled to advise a client of (i) the provisions and import of s.98 of the 1989 and (ii) the ability of the police and/or a co-accused to make application for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings;

(d) it is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings;

(e) It is wholly inappropriate and potentially a contempt of court for a legal practitioner to advise a client not to give a full, accurate and comprehensive response to the findings of fact sought by a local authority in the threshold criteria document. This applies both where that advice is limited in time, eg until after a criminal defence statement has been filed and served and, worse still, the advice is given not to make such a response at all;

(f) the date on which a party to care proceedings is to file and serve a criminal defence statement in linked criminal proceedings is wholly irrelevant to the court's determination of the date on which that party should file and serve a response to threshold and/or to file and serve a narrative statement in the care proceedings;

(g) the mere fact that a party is ordered to file and serve a response to threshold and/or to file and serve a narrative statement before the date a criminal defence statement is to be filed and served in criminal proceedings is not a ground for failing to comply with the former order;

(h) nor is it a ground for an application to extend the time for compliance with an order to file and serve a response to threshold and/or to file and serve a narrative statement until a date after the criminal defence statement has been filed and served;

(i) any issue about alleged prejudice to a defendant in criminal proceedings based on him being required to file and serve a response to threshold and/or to file and serve a narrative statement before the date of a criminal defence statement is to be filed and served, or at all, only arises and is only potentially relevant if and when an application is made by the police and/or a co-accused for statements and documents filed in the family proceedings to be disclosed into linked criminal proceedings. The court will then proceed to consider the application for disclosure in accordance with principles set out in Re C (A Minor) (Care Proceedings: Disclosure)[1997] Fam 76, sub nomRe EC (Disclosure of Material) [1996] 2 FLR 725.

(9) An understanding about the transparency principles, publication of anonymised judgments and that potentially, the local press can report on the facts of such a published judgment provided that they do not identify the child directly or indirectly.

Andrew Pack is a care lawyer at Brighton and Hove City Council and their in-house advocate. He has also represented parents in care proceedings.

He is the creator and author of the Suesspicious Minds child law blog, which deals with public law, private law, social work, serious case reviews and Court of Protection cases - www.suesspiciousminds.com. Andrew can also be contacted via Twitter at @suesspiciousmin.

Andrew was shortlisted for the Family Law Commentator of the Year Award at the 2013 Family Law Awards.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.